Bellone v. Hekmatjah
Filed 5/3/06 Bellone v. Hekmatjah CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| CHARLES BELLONE, Plaintiff and Appellant, v. MAJID HEKMATJAH et al., Defendants and Respondents. | B184157 (Los Angeles County Super. Ct. No. LC062887) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard Wolfe, Judge. Affirmed.
Law Offices of Paul N. Philips, Paul N. Philips and Michael J. Fucci for Plaintiff and Appellant.
Law Office of Priscilla Slocum and Priscilla Slocum; Early, Maslach & Oelze and James Grafton Randall for Defendants and Respondents.
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In this appeal, plaintiff Charles Bellone (plaintiff) challenges a summary judgment granted in favor of defendants Majid Hekmatjah and Vida Hekmatjah (defendants). The case is based on personal injuries which the plaintiff alleged he suffered when he tripped over four bolts that protruded up from a sidewalk located on Ventura Boulevard in Sherman Oaks. Plaintiff alleged in his complaint that the defendants owned and controlled the area where plaintiff was injured. His theory of the case is that the four bolts had, at some point in time, anchored a pay telephone to the sidewalk and defendants had the telephone removed but failed to also have the bolts removed.
The summary judgment was granted to defendants after we issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171) in response to a petition for a writ of mandate which they filed. In their petition, defendants requested that we issue a writ directing the trial court to vacate its order denying defendants' motion for summary judgment and enter an order granting such motion. After we issued the Palma notice, the trial court granted defendants the relief they sought from us and then entered the judgment from which plaintiff has appealed.[1]
Upon our review of the appellate record, we find that the trial court's judgment is correct. There is no evidence that at the time of plaintiff's alleged trip and fall, defendants owned, possessed or controlled the sidewalk where the injury occurred, nor is there evidence that defendants or their predecessors in title created the situation of protruding bolts. We will therefore affirm the summary judgment.
BACKGROUND OF THE CASE[2]
1. Procedural Background
This suit for premises liability and negligence was filed on November 6, 2002. Thereafter plaintiff amended his complaint twice.[3] The operative complaint (complaint) contains two causes of action--negligence and premises liability.
The complaint alleges that on November 7, 2001, at approximately 10 o'clock in the morning, plaintiff was walking on the sidewalk at 13317 Ventura Boulevard in Sherman Oaks, California, when he tripped and fell over four bolts that were located there, each protruding an inch from the sidewalk, and he permanently injured his right shoulder and arm. Plaintiff alleged that 13317 Ventura Boulevard is owned and controlled by defendants, and defendants failed to remove the bolts and failed to warn of the hazard or make it safe. (The location is apparently a shopping plaza owned by defendants.) Prior to the filing of his complaint, plaintiff filed a claim for damages with the City asserting the City failed to remove the bolts and this caused him to be injured.
Defendants' motion for summary judgment was apparently filed on October 6, 2003. The trial court heard and denied the motion on February 19, 2004, prompting defendants to file their petition for writ of mandate.
On March 30, 2004, we issued our Palma notice, and on April 6, 2004, the trial court vacated its order denying defendants' motion for summary judgment and issued a new order granting the motion. On April 14, 2004 we dismissed defendants' petition for writ of mandate, finding that the trial court had provided to defendants the relief they requested in their petition. The court issued its summary judgment on May 27, 2005, and thereafter plaintiff filed this timely appeal.
2. The Legal Grounds For Defendants' Motion For Summary Judgment
Defendants moved for summary judgment on the grounds that to establish liability against them, plaintiff had to show that defendants owed him a duty of care, breached that duty, and such breach was the proximate cause of plaintiff's injury, and in this case, as a matter of law, plaintiff cannot show that he was owed a duty of care by defendants. Defendants asserted there was no duty of care to plaintiff because the property on which plaintiff asserts he was injured as a result of an alleged dangerous condition on that property (the sidewalk at 13317 Ventura Boulevard in Sherman Oaks), is a sidewalk owned by the City, and plaintiff cannot show that defendants possessed or controlled that portion of the sidewalk or created the allegedly dangerous condition there.
3. Defendants' Supporting Evidence
a. Declaration Of William Dean Prange
William Dean Prange submitted a declaration wherein he stated he is employed by the City as a professional land surveyor, and in that capacity he reviewed an engineering street plan that shows the sidewalk in front of 13317 Ventura Boulevard, and he also went to that location. He did this at the request of the city attorney's office.
Regarding the engineering street plan, it shows the sidewalk in relation to the private property line at that address, and it shows that â€
